For those practising in the area of motor vehicle tort claims section 267.5 of the Insurance Act is familiar territory. In accordance with this section of the Act a person injured in a motor vehicle accident is barred from recovering non-pecuniary damages unless they are able to satisfy the statutory threshold prescribed in Regulation 381/03. Specifically, this regulation requires that in order to recover non-pecuniary damages at trial, the plaintiff must prove that, as a result of the injuries sustained in the motor vehicle accident, he/she suffered a permanent serious disfigurement or a permanent serious impairment of an important physical, mental or psychological function.
Not surprisingly, even though the terms “serious”, “important” and “permanent” are defined within the regulation, there is frequent legal debate as to whether a plaintiff’s claim satisfies the threshold. In an effort to clarify these “murky waters”, we summarize below four recent threshold decisions that shed light on some of the key considerations likely to affect the outcome of the threshold determination at trial.
Ianarella v Corbett (2012)
The decision of Justice Moore in Iannarella v Corbett involved a plaintiff who had a “pre‑existing but asymptomatic degenerative condition of the left shoulder” which had deteriorated following an automobile accident in February, 2008. The plaintiff subsequently underwent two surgeries that were aimed to improve his shoulder movement. At trial, the doctor who performed the surgeries referred to them as having been successful.
The trial of this action proceeded just seven months following the plaintiff’s second shoulder surgery and the treating doctors who testified at trial confirmed that further improvements in the plaintiff’s condition may not be realized until 2013.
The issue to be determined by the trial judge was whether the plaintiff had adduced sufficient evidence to corroborate a change in function that reflected a permanent and serious impairment of an important physical function.
Ultimately, Justice Moore determined that the plaintiff’s post-surgical recovery remained in progress at the time of the trial and that the medical evidence presented suggested the plaintiff’s injuries would likely substantially improve. Accordingly, the threshold was not met.
Smith v DeClute (2012)
In this decision of Justice Wilson, the plaintiff was indicated to have sustained a fractured rib and strains to his neck and back as a result of a motor vehicle accident. At trial, the plaintiff claimed that he experienced ongoing low back pain attributable to the accident.
Justice Wilson held that the plaintiff had failed to establish that the injuries sustained met the requirements of the threshold. In reaching this conclusion, Her Honour took into account the plaintiff’s credibility issues, the extent of the plaintiff’s drug use (which had not been disclosed to the plaintiff’s treating doctor), the fact that the plaintiff had failed to comply with prescribed treatment and surveillance video which contradicted the plaintiff’s evidence concerning his post‑accident limitations.
Dahrouj v Aduvala (2012)
This action involved a plaintiff who alleged that she had developed chronic pain syndrome post-accident which permanently and seriously impaired her physical function. In contrast, it was the defendant’s position that the plaintiff had fully recovered from her motor vehicle accident related injuries.
In this instance, issues with respect to the plaintiff’s credibility were extensive: despite medical records which suggested otherwise the plaintiff denied that she had visited her doctor prior to the accident with complaints similar to those she exhibited post‑accident; surveillance video showed the plaintiff engaged in activities which she had stated were impaired by her accident related injuries; and the medical expert retained by the defendant testified that the plaintiff had not exhibited symptoms of her accident related complaints for the entire duration of the medical examination.
In consideration of this evidence, Justice Hackland held that the plaintiff had failed to satisfy the requirements of the threshold. In reaching this determination, His Honour considered the jury’s verdict which had denied any recovery to the plaintiff for future housekeeping expenses as one of the factors that ultimately supported his finding that the plaintiff had not proven she suffered from an ongoing pain syndrome.
Ivens v Lesperance (2012)
The plaintiff claimed that as a result of a motor vehicle accident he had suffered, among other things, a left knee fracture. After the accident the plaintiff’s mother, brother and four friends provided evidence which indicated that the plaintiff’s behaviour had drastically changed as a result of his accident related injuries. The evidence of eight doctors, two occupational therapists and a rehabilitation councillor corroborated the fact that the plaintiff had suffered a permanent serious impairment of an important physical, mental or psychological function as a result of the accident. The defence medical expert also acknowledged that the plaintiff’s knee was causing him discomfort.
In this case, the Judge held that it was unlikely that the plaintiff’s knee condition would improve, and that there was a permanent impairment. It was determined that the plaintiff could no longer engage in the same high level of physical activity that he enjoyed previously such that the knee injury impaired an important bodily function. Lastly, it was found that the knee injury reflected a serious impairment, as it had led to a change in the plaintiff’s social behaviour and impacted his ability to generate sales leads in his employment.
These recent threshold decisions highlight some of the key factors that will be given close judicial scrutiny when determining whether a plaintiff’s claim satisfies the statutory threshold. Understandably, the credibility of the plaintiff and the supporting evidence of both lay and expert witnesses will be significant. In this regard, the Ianarella decision establishes that obtaining medical opinions relating to likely outcomes of the plaintiff’s alleged accident related medical condition are of importance. Where the plaintiff’s injuries may substantially improve, the court will be less likely to find that an accident related injury is either “permanent” or “serious”. Lastly, the Dharouj decision is a reminder of the fact that a judge may weigh the jury’s findings when reaching a decision as to whether the threshold test has been satisfied.
Alex Klyguine, Summer Student, co-authored this article.